2011-01-21 Former Swedish judge Sundberg-Weitman speaks out on the handling of the Julian Assange case

The following summarizes the unfolding of events surrounding the arrest of Julian Assange, as recounted in an article entitled "The European Arrest Order Against Julian Assange," originally published here by Brita Sundberg-Weitman, retired Swedish judge and author in the areas of legal and civil rights. Sundberg-Weitman also expresses concerns about media coverage of the event and about the possible extradition of Julian Assange in this article, which I received via email by a source who also reports that Sundberg-Weitman translated the piece herself. Quotations refer directly to this English translation received.

The article has 3 parts: Background, justification of extradition fears and clarification of related political considerations under Swedish law. Each is summarized here.

Background
On Friday, August 20, 2010, the decision was made by Maria Häljebo Kjellstrand to arrest Julian Assange, in absentia, on grounds of “suspected rape. This decision was made upon a telephone report by a police officer.” As we know, the police had interviewed the two women concerned. However, Sundberg-Weitman points out that the arrest decision was made “before the police interviews of the two women concerned were finished.”

It was also previously known that “[s]omebody leaked the decision to the Swedish tabloid Expressen, and it was made public all over the world,” and that the decision “was overruled within 24 hours by chief prosecutor Eva Finné. She stated that Assange was no longer suspected of rape.”

Claes Borgström, a lawyer known for feminist activism, lodged an appeal on behalf of the two women. The appeal was examined by Marianne Ny, chief of a prosecution “development center” specialized in, among other things, sexual offences.

[Ny] decided to overrule Finné’s decision and reopen the case of suspected rape. Like Borgström Ny is a feminist. She is known to have said that when a woman alleges she has been a victim of assault by a man, it is a good idea to have the man detained, because it is not until he is arrested that the woman has time to think of her life in peace and realize how she has been treated. According to Ny the detention has a good effect as protection for the woman ”even in cases where the perpetrator is prosecuted but not found guilty”.

Sundberg-Weitman then notes that despite the belief that an accused man should be detained irrespective of innocence, Ny did not arrest Julian Assange, who was in Sweden at the time. “[Nor] did [Ny] interview him about the allegations under investigation.”

When Assange had left Sweden (his application for a residence permit was rejected) Ny decided to arrest him in absentia and applied to the Stockholm District Court to confirm her decision. The District Court granted her application and, after appeal, its decision was confirmed by the Svea Court of Appeal. However, even before the Court of Appeal had had time to examine the appeal, Ny issued a European Arrest Warrant against Assange.

It is also noted that “[t]he Court of Appeal was chaired by its President, who was until recently National Prosecutor General.”

The question Sundberg-Weitman raises is that of why Ny did not take the opportunity “to interview Assange whilst he was still in Sweden” and “why she did not accept Assange’s proposal to be interrogated in England,” which is a legitimate request, in accordance with “rules valid in both Sweden and Britain on Mutual Legal Assistance.” She goes on to explain that The Handbook on International Legal Assistance, published by the Swedish National Prosecutor General, provides various means by which to proceed with interrogations in such cases. This detail is highlighted because Ny had claimed that “it would not be compatible with Swedish law to interrogate Assange in England.” Sundberg-Weitman notes that this “obviously is not true.”

In later interviews Ny answered that in the case of where it turned out after an interrogation of Assange that he should be immediately arrested, that would not be possible unless he was in Sweden. Possibly we see here a reflection of her view that it is a good thing to have a ”perpetrator” (!) locked up even in cases where he is subsequently acquitted in a court of law.

Assange’s fear of being extradited from Sweden to US
Sundberg-Weitman points out that Assange was opposed to the idea of being surrendered to Sweden because his fear was “that Sweden would in its turn extradite him to US, where he would be likely to be put away in jail or even murdered as a result of the anger Wikileaks has caused in US.” She reminds us that “there are prominent persons who have expressed the view that he should be treated as a terrorist and sentenced to death,” due to the perception that Assange “violated US law on espionage.” She adds that arguments have been raised to the effect that “it would be legally easier for US to have him extradited from UK than from Sweden.”

However, Sundberg-Weitman notes that this argument overlooks some important points. She states that Assange “has much more popular support in UK than in Sweden” and concludes that an extradition from the UK to the US would be less probable, on a political level, than an extradition from Sweden to the US.

[H]aving him extradited from Sweden would probably not cause much protest amongst Swedes. All the mass media in Sweden have a rather biased view on the case to the detriment of Assange, and they express great confidence in Sweden’s judiciary in the present case.

Sundberg-Weitman points out 2 facts that justify, in her own view, Assange’s “fear of being extradited from Sweden to US.”

1. [T]here are extremely strong interests in US who want him delivered because of Wikileaks.
2. [R]eports from the US embassy in Stockholm published by Wikileaks have revealed that the Swedish Government has gone out of its way to be helpful to US in various controversial matters.

She goes on to ask, in closing: “So why would the US not make use of its influence to put pressure on Sweden in order to have Assange extradited to the US?"

Political considerations under Swedish law
This final section deals with the question of whether it would be illegal, under Swedish law, for “political considerations” to influence the manner in which Assange is treated “by Swedish authorities as to the suspected sexual offences”. Questions pertaining to the events involving the arrest and its media coverage are also discussed.

Sundberg-Weitman considers the possibility that perhaps “Marianne Ny should not be blamed for wanting to press the definition of rape in cases of consensual sex,” noting that Ny “is, after all, she “heading a ‘development center’ specialized in sexual offences.” She argues:

To be sure, there can be no doubt that [Ny] has acted contrary to European law as established by the Court of Justice of the European Union. The issuing of a European Arrest Warrant against Assange runs counter to the European principle of proportionality: in interfering with a person’s freedom a State authority must limit itself to what is necessary in order to achieve its objective. In the present case Ny has clearly stated that her objective by issuing the European Arrest Warrant is to question Assange, because only after having heard his statements will she able to decide whether or not to prosecute him. Obviously Ny could have had Assange interrogated in England.

Sundberg-Weitman explains that “the Swedish version of the principle of proportionality is more blurred than that developed by the Court of Justice of the European Union.”

Thus, the Swedish statutory instrument regulating the issuance of European Arrest Warrants provides (under the headline ”Proportionalitet”) that a warrant may be issued only in cases where, considering the harm inflicted upon the person concerned, the delay and the costs that may be expected, an Arrest Warrant should be justified with respect to the nature and gravity of the offence “and other circumstances”.

Sundberg-Weitman points out that the words and other circumstances “seem to put no limit to what considerations are legal under the Swedish principle of proportionality enshrined in the statutory instrument.” This entails, in her opinion, that under Swedish law, it is therefore legal “to let considerations of foreign relations policy influence a prosecutor’s decision whether or not to issue a European Arrest Warrant”.

The previous point emphasizes not only the broadness of the Swedish principle of proportionality, but also various peculiarities that ensued in events involving both Ny’s subsequent actions and media coverage of the situation.

In point of fact the Swedish fundamental law, the Instrument of Government, provides that where an issue of importance for Sweden’s relation to another State appears in a public authority, the authority has to inform the Minister of Foreign Affairs (Chapter 10 § 8). The official comment to this provision states that the Minister must have an opportunity to explain to the authority what aspects of foreign policy may be involved. As a corollary of this provision the Handbook on European Arrest Warrant published by the National Prosecutor General provides that in case of doubt the National Prosecutor General’s office is to be consulted.

It follows from these provisions, says Sundberg-Weitman, that Ny was required to consult the National Prosecutor General prior to issuing the European Arrest Warrant against Assange, and that the National Prosecutor General, in turn, “must have presented the matter before the Minister of Foreign Affairs.” Yet an Expressen interview with National Prosecutor General Anders Perklev indicates otherwise. In the interview, says Sundberg-Weitman, he

gives the impression that Marianne Ny has been acting totally independently in the Assange case: ”Every prosecutor dealing with the case makes an independent evaluation. It is not the Prosecution Authority as such that makes a decision, it is the individual prosecutor who decides in his or her own name.

This, according to Sundberg-Weitman , “seems odd”.

Another rather peculiar thing is a communication made by Ny when the Westminster City Magistrates’ Court in London released Assange on condition of bail and rather severe restrictions. Sweden was given two hours’ time to decide whether or not to appeal. When the two hours were almost gone it was reported on the radio that Sweden had not appealed. But then, in the very last moment, it was dramatically noted that Sweden had indeed decided to appeal.

Events following the announcement do not appear consistent with the facts, however, since

[t]he following day Ny communicated on the Prosecutors’ home page that it was ”the British prosecutor” who had made the decision to appeal. Likewise, a representative of the National Prosecutor General, Nils Rekke, confirmed on TV that the appeal was a ”purely internal British” decision. Later on, however, Ny stated that she was ”content” with the decision – one may guess that the British Prosecutor had protested against being indirectly accused of high-handedness.

Sundberg-Weitman concludes by asking, “Why these half-truths allocating all responsibility to Ny for the procedure in Sweden and to the British for Sweden´s appeal in Britain?” Her answer: “Well, I don’t know the answer to that, but it does appear as if something is being hidden under the carpet.”